The committee that determines who gets an official Senate press pass has denied one to SCOTUSblog because it says the site’s journalism involves a conflict of interest — but the press gallery is ignoring how journalism has changed, in this case for the better

The irony couldn’t be any more stark: On Monday, at almost the exact same moment as tens of thousands of people — including dozens of professional journalists — were checking the SCOTUSblog site to see whether new decisions by the country’s top court had been posted, the site itself was being denied a press pass by the standing committee of journalists who approve such credentials for the U.S. Senate. A pass is a crucial step towards getting credentials from the court itself, something SCOTUSblog has repeatedly been prevented from having.

To anyone who follows the Supreme Court, the blog that lawyer Tom Goldstein started over a decade ago has become a must-read, not just for its wall-to-wall coverage of the court’s decisions, but in-depth analysis of those decisions and their impact. The site has won a Peabody Award — the first blog to win such an honor — as well as an award from the Society for Professional Journalists and the silver gavel award from the American Bar Association (the only blog to win one).

To the members of the Senate’s press gallery committee, however — who work for mainstream publications such as the Wall Street Journal and Roll Call — SCOTUSblog is a tangled knot of conflicted interests, because its founder and one of its writers are practicing lawyers. But doesn’t this mean that the blog’s content is likely to be even more valuable and credible to readers than the reporting of a publication with less expertise? Apparently not.

Too many conflicts, Senate group says

In a bizarre example of circular reasoning, the committee said in its decision (PDF link) that it couldn’t allow itself to consider the actual quality of the blog’s journalism — in other words, the thing that has won all the awards — because that could lead to censorship. So all the committee did was consider whether it is run by anyone who is involved in “lobbying the government,” and if so whether the publication has done enough to protect its content from any potential conflict of interest. It decided that SCOTUSblog fails both of these tests:

“Law-firm partner Thomas C. Goldstein said he controls the editorial direction of the blog and determines areas of coverage. At the same time, Mr. Goldstein advocates before the Supreme Court, which is a form of lobbying the federal government. Thus, SCOTUSblog fails the test of editorial independence. [Also], the rule says that the publication must be editorially independent of any institution that is not principally a general news organization. That means SCOTUSblog would need to be editorially independent of Mr. Goldstein and the firm, because neither is principally a general news organization.”

Although Goldstein has instituted a number of procedures to prevent his legal work from influencing the content on the blog — including a policy of assigning other writers to decisions that might affect him or his clients — the Senate committee decided that this firewall was insufficient to prevent conflicts of interest. The fact that Goldstein also derives some publicity for himself and his firm from the blog also seemed to trouble the committee, since this presumably isn’t the kind of behavior that real journalistic organizations engage in. As lawyer and blogger Eugene Volokh — a First Amendment expert and former Supreme Court clerk — points out in his response to the committee’s decision, the denial of credentials to what he calls “the most important and valuable source of news and analysis about the Supreme Court” isn’t just a mistake, it shows a fundamental misunderstanding of how the internet has changed journalism.

Traditional journalists feel threatened

The bottom line, as I tried to suggest in a post after SCOTUSblog was first denied a pass, is that the members of the Senate committee are trying to protect a specific model of traditional journalism from what they see as a potential threat by a model they don’t recognize. This is what I like to call a “white blood-cell response,” much like the one that the human body engages in when it feels threatened by a virus. Goldstein puts it well in a blog post about the effect of the Senate’s denial:

“I think that this is a sad day for what it means to be a journalist, and that the Standing Committee will find itself on the wrong side of history on this question. This scenario — specialists reporting on their respective fields of expertise — is going to grow, not diminish. Traditional media is contracting. Non-traditional, expert media is expanding, including because we have access to inexpensive distribution through the Internet. We do not need a printing press.”

As Volokh notes in his post, one of the best things about the blogging revolution is that it allows the “sources to go direct,” as Dave Winer likes to say. In other words, experts who are actually involved in or who have valuable insight into things like Supreme Court rulings can comment on them without having to wait for a reporter who doesn’t know anything to call and ask them a specific question. This is almost unquestionably a good thing, both for journalism and for society in general. Because of SCOTUSblog there is dramatically more information, and better information, about the Supreme Court than there was before it existed.

Does this model contain the potential for conflicts of interest? Of course it does. Which is why smart proprietors like Goldstein disclose their relationships as much as possible and set up procedures in order to retain the trust of their readers — like the 10,000 or so who rushed to the site on Monday. If it didn’t do so then it would lose that trust, and it would be out of business overnight. Readers should make the choice about whether or not that happens, not the Senate press gallery.